Neiss v. Burwen

• Decision Date: 26 June 1934
• Citation: 191 N.E. 654,287 Mass. 82
• Parties: NEISS v. BURWEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 82

191 N.E. 654

NEISS

v.BURWEN.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1934.

Exceptions from Superior Court, Middlesex County; Gibbs, Judge.

Action of tort by John L. Neiss, Jr., administrator d. b. n. of the estate of Walter J. Neiss, deceased, against Morris Burwen. Verdicts for plaintiff on both counts of the declaration in sums totaling $11,400, and the defendant brings exceptions.

Verdicts ordered to stand so far as they relate to liability, but new trial granted on damages.J. F. O'Connell and J. A. Herbert, both of Boston, for plaintiff.

G. M. Poland and C. Hamilton, both of Boston, for defendant.

CROSBY, Justice.

This is an action of tort to recover for the conscious suffering and death of the plaintiff's intestate, Walter J. Neiss. The declaration, which is in two counts, alleges in the first that on the second day of September, 1928, the intestate, while in the employ of the defendant, suffered severe personal injury caused by a defect in the condition of the ways, works, or machinery of the defendant arising by reason of the negligence of the defendant, and that the existence of this defect was unknown to the employee; that as a result of the injury, the employee suffered severely and died, leaving surviving next of kin who were at the time of his death dependent on the wages of the deceased for support; that due notice of the time, place and cause of the injury was given to the defendant. The second count contains the same general allegations of the circumstances causing the injury and recites that the employee suffered great pain from the time of the injury to the time of his death. The answer was a general denial and an allegation of contributory negligence. The defendantwas not a subscriber under the Workmen's Compensation Act. In his brief the defendant concedes that there was evidence on which general employment of the deceased by the defendant could be found during the summer of 1928.

There was evidence tending to show that the defendant operated several stations for the sale of gasoline and kerosene oil. A storage place in the yard of his residence, consisting of two underground tanks, one of which contained three or four thousand gallons of gasoline, was involved in the present case. Pipes led from the underground tanks to two pumps driven by an electric motor in a small wooden building in the yard. The tank wagon to be filled was driven outside of and near the building containing the pumps, and the gasoline was pumped out of the building in a pipe and into the tank in the yard. Electric current for the motor was furnished by the town's electric power service, on a wire line that entered the side of the building and passed along the side to a starting box, which the plaintiff contends originated the spark that caused the fire. From the starting box, the electric line led to the motor operating the pump. Between the side of the building where the line entered and the starting box, there was a break in the line connected by a switch of the type commonly known as a knife blade switch, consisting of a handle fixed to two copper strips; when it was raised and pushed between other copper strips, connection was made in the line. There was another break in the line at the starting box; this was connected or closed by moving the handle of the starting box to the left and upwards. When the handle of the box was down, the circuit or line was open; to operate the pump, after starting it by a hand wheel, the handle on the starting box was moved to the left and upwards to a copper segment marked ‘start’ and then farther up to a copper segment marked ‘run.’ At its highest position the handle was caught by a clutch which held it in the running position until the clutch was released by hand or by a magnetic or induction coil attachment, which released the clutch and allowed the handle, actuated by a strong spring, to fall back to its lowest position when current ceased to flow through the line, for instance, by disconnecting the line or knife blade switch. The copper underface of the starting box handle was of such width that, as the handle was being raised or lowered, its copper undersurface or show was a contact with the copper segments marked ‘start’ and ‘run.’ One pump was used for gasoline and one for kerosene. The gasoline pump was farther away from the starting box than the kerosene pump, and the handle of the starting box was out of reach of one using the hand wheel of the gasoline pump and a rope was tied to the starting box handle which led through a block fixed to the building, with the free end within the reach of the person operating the gasoline pump. The two pumps with the attached pipes were placed above the floor and each had a perpendicular pipe two inches in diameter, about two feet high, with the upper end closed by a square-headed plug which screwed into the threaded top of the pipe. These pipes were for priming the pumps when necessary. If a pump had not been used for a long time, especially in cold weather, it was sometimes necessary to unscrew the plug from the top of the priming pipe, remove it and pour the priming fluid into the top of the pipe. If the pump was operated with the plug out of the priming pipe, after being primed with gasoline, the latter would be forced from the open top of the pipe.

The fire which caused the death of the deceased occurred about 11 a. m. on Sunday, September 2, 1923. There was only one eyewitness to the start of the fire, one George Muse, who was called as a witness for the plaintiff. He testified that on Sunday morning the deceased asked him to go to Wilmington with him with a load of gasoline; that the witness went with the deceased on a tank truck to the residence of the defendant where the deceased drove the truck to a place near the building containing the pumps. Muse then testified as follows: ‘Well, he drove the truck right into the barn * * * and he got off of it and climbed up to the back of it and put this funnel in it where the gasoline runs into the tank, gasoline tank, then he got off the truck and went to this 50 gallon drum and there was a little pump attached to it and he took this open gallon measure and filled it up and went over to the engine; he took the priming cap off the engine and poured the gasoline into the engine, then he started to turn the wheel slow, he started it faster and faster, then he told me to touch the switch, I didn't do anything then, I just stood there, and he pulled the switch, * * * and there were several sparks and then a couple of puffs and there was a big explosion. I ran out, he ran out and fell in the main street. * * *’ This witness further testified on cross-examination that as far as he saw there was no gasoline exposed in the room where this pump was except what Neiss poured into the top of the primer. There was an apparent conflict between the testimony given by this witness at a former trial and that given by him at this trial as to which switch it was that the sparks came from, that is, whether it was the starting box or the knife-blade switch. His present testimony was that they came from the starting box.

Mary Neiss, a sister of the deceased, testified that he told her he was getting ready to fill a tank and there was an explosion and his overalls caught fire. From the testimony of one Hubbard, an employee of the defendant, it could have been found that he went to the plant the day before the fire and saw the defendant there; that the tank truck was being filled, the gasoline pump was not pumping as it should, and the witness mentioned it to the defendant who said that he thought the trouble was not in the motor but in the switch, that he had called an electrician, who had worked on it and was ‘going for a part.’ The defendant testified that his son told him on Friday before the accident that the pump was not pumping fast enough; that he sent for an electrician who came on that day, was shown the mechanism and was told that it was not pumping right; that the electrician said he had to get something he did not have and would return with it the following day.

One Allen, who qualified as an expert for the installation of pumps for inflammable fluids, testified that in his opinion if, after a gasoline tank had been primed with a gallon of gasoline and the plug was off, and the handle of the pump turned rapidly, and as the switch was thrown sparks appeared and an explosion followed, it was the result of vapor from the gasoline mixed with air coming in contact with the arcing of the switch. This witness further testified that ‘sparking’ or ‘arcing’ is caused by breaking contact. He then left the stand to examine the starting box in evidence more closely. He then testified that before the handle left the copper segment marked ‘start’ it made contact with the segment marked ‘run’; that if the knife blade switch was open and the handle of the starting box was in the down or off position it was not physically possible to cause a spark by closing the knife blade switch.

One Phelps, an electrician, testified that on the Friday before the fire the defendant called him to look at the motor; that he examined the apparatus and found the winding of the magnetic coil that operated the release mechanism of the handle of the starting box was so charred that it was not operating, that the copper contacts on the face of the box (with which the handle connected as it was raised to ‘start’ and ‘run’) were so badly worn that the contacts were poor, which would account for the motor running slow, and that he took the coil off and to his home, telling the defendant that he had it but that the absence of the coil would not affect the running of the motor except that the automatic release of the handle would not work. He further testified that he rewound the coil, carried it back to the defendant's plant on Saturday afternoon, replaced the coil and took off the...